IN THE SUPREME COURT OF CALIFORNIA
MARATHON ENTERTAINMENT, INC., )
Plaintiff and Appellant,
S145428
v.
Ct.App. 2/1 B179819
ROSA BLASI et al.,
Los Angeles County
Defendants and Respondents. )
Super. Ct. No. BC290839
In Hollywood, talent — the actors, directors, and writers, the Jimmy
Stewarts, Frank Capras, and Billy Wilders who enrich our daily cultural lives — is
represented by two groups of people: agents and managers. Agents procure roles;
they put artists on the screen, on the stage, behind the camera; indeed, by law, only
they may do so. Managers coordinate everything else; they counsel and advise,
take care of business arrangements, and chart the course of an artist’s career.
This division largely exists only in theory. The reality is not nearly so neat.
The line dividing the functions of agents, who must be licensed, and of managers,
who need not be, is often blurred and sometimes crossed. Agents sometimes
counsel and advise; managers sometimes procure work. Indeed, the occasional
procurement of employment opportunities may be standard operating procedure
for many managers and an understood goal when not-yet-established talents,
1
lacking access to the few licensed agents in Hollywood, hire managers to promote
their careers.1
We must decide what legal consequences befall a manager who steps across
the line and solicits or procures employment without a talent agency license. We
hold that (1) contrary to the arguments of personal manager Marathon
Entertainment, Inc. (Marathon), the strictures of the Talent Agencies Act (Lab.
Code, § 1700 et seq.) (Act) apply to managers as well as agents; (2) contrary to the
arguments of actress Rosa Blasi (Blasi), while the Labor Commissioner has the
authority to void manager-talent contracts ab initio for unlawful procurement, she
also has discretion to apply the doctrine of severability to partially enforce these
contracts; and (3) in this case, a genuine dispute of material fact exists over
whether severability might apply to allow partial enforcement of the parties’
contract. Accordingly, we affirm the Court of Appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In 1998, Marathon and Blasi entered into an oral contract for Marathon to
serve as Blasi’s personal manager. Marathon was to counsel Blasi and promote
her career; in exchange, Blasi was to pay Marathon 15 percent of her earnings
1
See Zelenski, Talent Agents, Personal Managers, and Their Conflicts in the
New Hollywood (2003) 76 So.Cal. L.Rev. 979, 993-998 (hereafter Conflicts in the
New Hollywood); Comment, The Talent Agencies Act: Reconciling the
Controversies Surrounding Lawyers, Managers, and Agents Participating in
California’s Entertainment Industry (2001) 28 Pepperdine L.Rev. 381, 386
(hereafter Talent Agencies Act); Comment, Regulation of Attorneys Using
California’s Talent Agencies Act: A Tautological Approach to Protecting Artists
(1992) 80 Cal. L.Rev. 471, 481-484 (hereafter Regulation of Attorneys).
Additionally, in connection with the petition for review in this case, this court has
received dozens of letters from personal managers working in the entertainment
industry who suggest they owe a fiduciary duty to their clients to procure
employment.
2
from entertainment employment obtained during the course of the contract.
During the ensuing three years, Blasi’s professional appearances included a role in
a film, Noriega: God’s Favorite (Industry Entertainment 2000), and a lead role as
Dr. Luisa Delgado on the television series Strong Medicine.
According to Marathon, Blasi reneged on her agreement to pay Marathon
its 15 percent commission from her Strong Medicine employment contract. In the
summer of 2001, she unilaterally reduced payments to 10 percent. Later that year,
she ceased payment altogether and terminated her Marathon contract, stating that
her licensed talent agent, John Kelly, who had served as her agent throughout the
term of the management contract with Marathon, was going to become her new
personal manager.
Marathon sued Blasi for breach of oral contract, quantum meruit, false
promise, and unfair business practices, seeking to recover unpaid Strong Medicine
commissions. Marathon alleged that it had provided Blasi with lawful personal
manager services by providing the downpayment on her home, paying the salary
of her business manager, providing her with professional and personal advice, and
paying her travel expenses.
After obtaining a stay of the action, Blasi filed a petition with the Labor
Commissioner alleging that Marathon had violated the Act by soliciting and
procuring employment for Blasi without a talent agency license.2 The Labor
Commissioner agreed, finding that Marathon had violated the Act by providing
talent agency services without a license, including “procur[ing] work for [Blasi] as
2
The Labor Commissioner has original and exclusive jurisdiction over issues
arising under the Act. (Styne v. Stevens (2001) 26 Cal.4th 42, 54-56; Lab. Code,
§ 1700.44, subd. (a).) All further undesignated statutory references are to the
Labor Code.
3
an actress on the . . . television series, Strong Medicine.” It voided the parties’
contract ab initio and barred Marathon from recovery.
Marathon appealed the Labor Commissioner’s ruling to the superior court
for a trial de novo. (See § 1700.44, subd. (a); Buchwald v. Katz (1972) 8 Cal.3d
493, 500-501.) It also amended its complaint to include declaratory relief claims
challenging the constitutionality of the Act. Marathon alleged that the Act’s
enforcement mechanisms, including the sanction of invalidating the contracts of
personal managers that solicit or procure employment for artists without a talent
agency license, violated the managers’ rights under the due process, equal
protection, and free speech guarantees of the state and federal Constitutions.
Blasi moved for summary judgment on the theory that Marathon’s licensing
violation had invalidated the entire personal management contract. Blasi
submitted excerpts from the Labor Commissioner hearing transcript as evidence
that Marathon had violated the Act by soliciting or procuring employment for her
without a talent agency license. Blasi did not specifically argue or produce
evidence that Marathon had illegally procured the Strong Medicine employment
contract.
The trial court granted Blasi’s motion for summary judgment and
invalidated Marathon’s personal management contract as an illegal contract for
unlicensed talent agency services in violation of the Act, denied Marathon’s
motion for summary adjudication of the Act’s constitutionality, and entered
judgment for Blasi.
The Court of Appeal reversed in part. It agreed with the trial court that the
Act applied to personal managers. However, it concluded that under the law of
severability of contracts (Civ. Code, § 1599), because the parties’ agreement had
the lawful purpose of providing personal management services that are
unregulated by the Act, and because Blasi had not established that her Strong
4
Medicine employment contract was procured illegally, the possibility existed that
Blasi’s obligation to pay Marathon a commission on that contract could be severed
from any unlawful parts of the parties’ management agreement. In reaching this
conclusion, the Court of Appeal distinguished prior cases that had voided
management contracts in their entirety (Yoo v. Robi (2005) 126 Cal.App.4th 1089;
Waisbren v. Peppercorn Productions, Inc. (1995) 41 Cal.App.4th 246) and in
some cases expressly refused to sever the contracts (Yoo, at pp. 1104-1105).
We granted review to address the applicability of the Act to personal
managers and the availability of severance under the Act.
DISCUSSION
I. Background
A. Agents and Managers
In Hollywood, talent agents act as intermediaries between the buyers and
sellers of talent. (Regulation of Attorneys, supra, 80 Cal. L.Rev. at p. 479.) While
formally artists are agents’ clients, in practice a talent agent’s livelihood depends
on cultivating valuable connections on both sides of the artistic labor market.
(Birdthistle, A Contested Ascendancy: Problems with Personal Managers Acting
as Producers (2000) 20 Loyola L.A. Ent. L.J. 493, 502-503 (hereafter Contested
Ascendancy); Regulation of Attorneys, at p. 479.) Generally speaking, an agent’s
focus is on the deal: on negotiating numerous short-term, project-specific
engagements between buyers and sellers. (Conflicts in the New Hollywood, supra,
76 So.Cal. L.Rev. at p. 981.)
Agents are effectively subject to regulation by the various guilds that cover
most of the talent available in the industry: most notably, the Screen Actors Guild,
American Federation of Television and Radio Artists, Directors Guild of America,
Writers Guild of America, and American Federation of Musicians. (Regulation of
Attorneys, supra, 80 Cal. L.Rev. at p. 487.) Artists may informally agree to use
5
only agents who have been “franchised” by their respective guilds; in turn, as a
condition of franchising, the guilds may require agents to agree to a code of
conduct and restrictions on terms included in agent-talent contracts. (Conflicts in
the New Hollywood, supra, 76 So.Cal. L.Rev. at pp. 989-990; Contested
Ascendancy, supra, 20 Loyola L.A. Ent. L.J. at p. 520.) Most significantly, those
restrictions typically include a cap on the commission charged (generally
10 percent), a cap on contract duration, and a bar on producing one’s client’s work
and obtaining a producer’s fee. (Screen Actors Guild, Codified Agency Regs.,
rule 16(g); American Federation of Television and Radio Artists, Regs. Governing
Agents, rule 12-C; Matthau v. Superior Court (2007) 151 Cal.App.4th 593, 596-
597; Conflicts in the New Hollywood, at pp. 989-990; Contested Ascendancy, at
pp. 520-521.) These restrictions create incentives to establish a high volume
clientele, offer more limited services, and focus on those lower risk artists with
established track records who can more readily be marketed to talent buyers.
(Conflicts in the New Hollywood, at p. 981; Contested Ascendancy, at p. 503.)
Personal managers, in contrast, are not franchised by the guilds. (Conflicts
in the New Hollywood, supra, 76 So.Cal. L.Rev. at p. 991; Contested Ascendancy,
supra, 20 Loyola L.A. Ent. L.J. at p. 522.) They typically accept a higher risk
clientele and offer a much broader range of services, focusing on advising and
counseling each artist with an eye to making the artist as marketable and attractive
to talent buyers as possible, as well as managing the artist’s personal and
professional life in a way that allows the artist to focus on creative productivity.
(Waisbren v. Peppercorn Productions, Inc., supra, 41 Cal.App.4th at pp. 252-253;
Cal. Entertainment Com., Rep. (Dec. 2, 1985) p. 9 (hereafter Entertainment
Commission Report); Regulation of Attorneys, supra, 80 Cal. L.Rev. at pp. 482-
483.) “Personal managers primarily advise, counsel, direct, and coordinate the
development of the artist’s career. They advise in both business and personal
6
matters, frequently lend money to young artists, and serve as spokespersons for the
artists.” (Park v. Deftones (1999) 71 Cal.App.4th 1465, 1469-1470.) Given this
greater degree of involvement and risk, managers typically have a smaller client
base and charge higher commissions than agents (as they may, in the absence of
guild price caps); managers may also produce their clients’ work and thus receive
compensation in that fashion. (Conflicts in the New Hollywood, at p. 992; Talent
Agencies Act, supra, 28 Pepperdine L.Rev. at p. 383; Contested Ascendancy, at pp.
508, 526-527; Regulation of Attorneys, at p. 483.)
B. The Talent Agencies Act
Aside from guild regulation, the representation of artists is principally
governed by the Act. (§§ 1700-1700.47.) The Act’s roots extend back to 1913,
when the Legislature passed the Private Employment Agencies Law and imposed
the first licensing requirements for employment agents. (Buchwald v. Superior
Court (1967) 254 Cal.App.2d 347, 357; Talent Agencies Act, supra, 28 Pepperdine
L.Rev. at p. 387; Regulation of Attorneys, supra, 80 Cal. L.Rev. at p. 493.) From
an early time, the Legislature was concerned that those representing aspiring
artists might take advantage of them, whether by concealing conflicts of interest
when agents split fees with the venues where they booked their clients, or by
sending clients to houses of ill-repute under the guise of providing “employment
opportunities.” (See Stats. 1913, ch. 282, § 14, pp. 519-520 [prohibiting agents
from fee-splitting, sending artists to “house[s] of ill fame” or saloons, or allowing
“persons of bad character” to frequent their establishments]; Talent Agencies Act,
at pp. 386-387; Regulation of Attorneys, at p. 493.) Exploitation of artists by
representatives has remained the Act’s central concern through subsequent
incarnations to the present day. (See Styne v. Stevens, supra, 26 Cal.4th at p. 50.)
In 1978, the Legislature considered establishing a separate licensing
scheme for personal managers. (See Assem. Bill No. 2535 (1977-1978 Reg.
7
Sess.) as amended May 1, 1978, § 41; Assem. Com. on Labor, Employment &
Consumer Affairs, Analysis of Assem. Bill No. 2535 (1977-1978 Reg. Sess.) as
amended May 1, 1978, pp. 1-4; Entertainment Com. Rep., supra, at p. 8.) Unable
to reach agreement, the Legislature eventually abandoned separate licensing of
personal managers and settled for minor changes in the statutory regime, shifting
regulation of musician booking agents to the Labor Commissioner and renaming
the Artists’ Managers Act the Talent Agencies Act. (Stats. 1978, ch. 1382, pp.
4575-4583.)
In 1982, the Legislature provisionally amended the Act to impose a one-
year statute of limitations, eliminate criminal sanctions for violations of the Act,
and establish a “safe harbor” for managers to procure employment if they did so in
conjunction with a licensed agent. (Former § 1700.44, as enacted by Stats. 1982,
ch. 682, § 3, p. 2815; Entertainment Com. Rep., supra, at pp. 8, 38-39.) It
subjected these changes to a sunset provision and established the 10-person
California Entertainment Commission (Entertainment Commission), consisting of
agents, managers, artists, and the Labor Commissioner, to evaluate the Act and
“recommend to the Legislature a model bill.” (Former §§ 1701-1704, added by
Stats. 1982, ch. 682, § 6, p. 2816, repealed by its own terms, Jan. 1, 1986.) In
1986, after receiving the Entertainment Commission Report, the Legislature
adopted its recommendations, which included making the 1982 changes
permanent and enacting a modest series of other changes. (Stats. 1986, ch. 488,
pp. 1804-1808; Entertainment Com. Rep., at pp. 22-34; Sen. Com. on Industrial
Relations, Analysis of Assem. Bill No. 3649 (1985-1986 Reg. Sess.) as amended
Apr. 15, 1986, p. 5 [bill would implement Entertainment Commission’s
recommendations “in full”].) So the Act has stood, with minor modifications, for
the last 20 years.
8
In its present incarnation, the Act requires anyone who solicits or procures
artistic employment or engagements for artists3 to obtain a talent agency license.
(§§ 1700.4, 1700.5.) In turn, the Act establishes detailed requirements for how
licensed talent agencies conduct their business, including a code of conduct,
submission of contracts and fee schedules to the state, maintenance of a client trust
account, posting of a bond, and prohibitions against discrimination, kickbacks, and
certain conflicts of interest. (§§ 1700.23–1700.47.) No separate analogous
licensing or regulatory scheme extends to personal managers. (Waisbren v.
Peppercorn Productions, Inc., supra, 41 Cal.App.4th at p. 252.)
With this background in mind, we turn to two questions not previously
addressed by this court: whether the Act in fact applies to personal managers, as
the Courts of Appeal and Labor Commissioner have long assumed, and if so, how.
II. The Scope of the Talent Agencies Act: Application to Managers
Marathon contends that personal managers are categorically exempt from
regulation under the Act. We disagree; as we shall explain, the text of the Act and
persuasive interpretations of it by the Courts of Appeal and the Labor
Commissioner demonstrate otherwise.
We begin with the language of the Act. (Elsner v. Uveges (2004) 34
Cal.4th 915, 927.) Section 1700.5 provides in relevant part: “No person shall
engage in or carry on the occupation of a talent agency without first procuring a
3
“ ‘Artists’ means actors and actresses rendering services on the legitimate
stage and in the production of motion pictures, radio artists, musical artists,
musical organizations, directors of legitimate stage, motion picture and radio
productions, musical directors, writers, cinematographers, composers, lyricists,
arrangers, models, and other artists and persons rendering professional services in
motion picture, theatrical, radio, television and other entertainment enterprises.”
(§ 1700.4, subd. (b).)
9
license therefor from the Labor Commissioner.” (Italics added.) In turn, “person”
is expressly defined to include “any individual, company, society, firm,
partnership, association, corporation, limited liability company, manager, or their
agents or employees” (§ 1700, italics added), and “ ‘[t]alent agency’ means a
person or corporation who engages in the occupation of procuring, offering,
promising, or attempting to procure employment or engagements for an artist or
artists” other than recording contracts (§ 1700.4, subd. (a)).
The Act establishes its scope through a functional, not a titular, definition.
It regulates conduct, not labels; it is the act of procuring (or soliciting), not the title
of one’s business, that qualifies one as a talent agency and subjects one to the
Act’s licensure and related requirements. (§ 1700.4, subd. (a).) Any person who
procures employment — any individual, any corporation, any manager — is a
talent agency subject to regulation. (§§ 1700, 1700.4, subd. (a).) Consequently, as
the Courts of Appeal have unanimously held, a personal manager who solicits or
procures employment for his artist-client is subject to and must abide by the Act.
(Park v. Deftones, supra, 71 Cal.App.4th at pp. 1470-1471; Waisbren v.
Peppercorn Productions, Inc., supra, 41 Cal.App.4th at p. 253; see also Buchwald
v. Superior Court, supra, 254 Cal.App.2d at pp. 354-355 [deciding same issue
under the Act’s predecessor, the Artists’ Managers Act].)4 The Labor
4
The Legislature clearly agreed with this understanding of the Act. In 1978,
it considered but ultimately rejected a special exemption that would have
specifically authorized personal managers to procure employment for artists
already represented by licensed talent agencies. (See Assem. Bill No. 2535 (1977-
1978 Reg. Sess.) as amended May 10, 1978 [deleting proposal to enact new
§ 1708, which would have codified special exemption].) In 1986, it made
permanent section 1700.44, subdivision (d), which creates a safe harbor for an
unlicensed person or entity to “act in conjunction with, and at the request of, a
licensed talent agency in the negotiation of an employment contract.” Both the
originally contemplated exemption and the ultimately adopted safe harbor
(footnote continued on next page)
10
Commissioner, whose interpretations of the Act we may look to for guidance (see
Styne v. Stevens, supra, 26 Cal.4th at p. 53; Yamaha Corp. of America v. State Bd.
of Equalization (1998) 19 Cal.4th 1, 7-8), has similarly uniformly applied the Act
to personal managers. (See, e.g., Sheridan v. Yoches, Inc. (Cal.Lab.Com., Sept. 4,
2007) TAC No. 21-06, pp. 2, 13-20; Jones v. La Roda Group (Cal.Lab.Com.,
Dec. 30, 2005) TAC No. 35-04, pp. 9-11; Hall v. X Management, Inc.
(Cal.Lab.Com., Apr. 24, 1992) TAC No. 19-90, pp. 28-35.)5
As to the further question whether even a single act of procurement suffices
to bring a manager under the Act, we note that the Act references the “occupation”
of procuring employment and serving as a talent agency. (§§ 1700.4, subd. (a),
1700.5.) Considering this in isolation, one might interpret the statute as applying
only to those who regularly, and not merely occasionally, procure employment.
(See Wachs v. Curry (1993) 13 Cal.App.4th 616, 628 [Act applies only when “the
agent’s employment procurement function constitutes a significant part of the
agent’s business as a whole”].) However, as we have previously acknowledged in
dicta, “[t]he weight of authority is that even the incidental or occasional provision
(footnote continued from previous page)
provision would have been largely superfluous if unlicensed entities were already
free to procure employment, so long as they did not label themselves as talent
agencies. (See Waisbren v. Peppercorn Productions, Inc., supra, 41 Cal.App.4th
at p. 259.)
5
While we do not place great weight on legislative inaction, we note as well
that the Legislature in 1982 considered but ultimately rejected an amendment to
the Act that would have expressly exempted a particular class of personal
managers — an amendment that would have been wholly superfluous if, as
Marathon argues, they were already exempt. (Compare Assem. Bill No. 997
(1981-1982 Reg. Sess.) as amended Aug. 17, 1982 [including exemption] with
Assem. Bill No. 997 (1981-1982 Reg. Sess.) as amended Aug. 26, 1982 [deleting
exemption].)
11
of such services requires licensure.” (Styne v. Stevens, supra, 26 Cal.4th at p. 51,
citing Park v. Deftones, supra, 71 Cal.App.4th 1465, and Waisbren v. Peppercorn
Productions, Inc., supra, 41 Cal.App.4th 246.)6 In agreement with these
decisions, the Labor Commissioner has uniformly interpreted the Act as extending
to incidental procurement. (See, e.g., Gittelman v. Karolat (Cal.Lab.Com.,
July 19, 2004) TAC No. 24-02, p. 14; Kilcher v. Vainshtein (Cal.Lab.Com.,
May 30, 2001) TAC No. 02-99, pp. 20-21; Damon v. Emler (Cal.Lab.Com.,
Jan. 12, 1982) TAC No. 36-79, p. 4.) The Labor Commissioner’s views are
entitled to substantial weight if not clearly erroneous (Styne v. Stevens, at p. 53);
accordingly, we likewise conclude the Act extends to individual incidents of
procurement.
Marathon offers two main arguments against the conclusion that it is
subject to the Act whenever it solicits or procures employment. First, it objects
that the Act’s title and contents reference only talent agencies and thus only talent
agencies may be regulated under the Act. (See Cal. Const., art. IV, § 9; Brunson
v. City of Santa Monica (1915) 27 Cal.App. 89, 92-93 [act whose title limits its
scope to public officer liability may not constitutionally be interpreted to alter
public municipal corporation liability].) Article IV, section 9 sets out this state’s
single-subject rule and, as relevant here, requires: “A statute shall embrace but
one subject, which shall be expressed in its title. If a statute embraces a subject
6
Post-Styne, the Courts of Appeal have arrived at unanimity on this question.
In Yoo v. Robi, supra, 126 Cal.App.4th 1089, the same court that had issued
Wachs v. Curry, supra, 13 Cal.App.4th 616, effectively repudiated its prior
interpretation, noting with approval that courts have “unanimously denied . . .
recovery to personal managers even when the majority of the managers’ activities
did not require a talent agency license and the activities which did require a license
were minimal and incidental.” (Yoo, at p. 1104, fn. omitted.)
12
not in its title, only the part not expressed is void.” From this, Marathon reasons
that (1) the Act’s title omits reference to regulation of personal managers, and
(2) to the extent it purports to regulate personal managers, it is thus void.
This is a misreading of the constitutional provision and the 1978 legislation.
The single-subject rule is intended to prevent “log-rolling by the Legislature, i.e.,
combining several proposals in a single bill so that legislators, by combining their
votes, obtain a majority for a measure which would not have been approved if
divided into separate bills.” (Harbor v. Deukmejian (1987) 43 Cal.3d 1078,
1096.) In turn, “the requirement that the single subject of a bill shall be expressed
in its title is to prevent misleading or inaccurate titles so that legislators and the
public are afforded reasonable notice of the contents of a statute.” (Ibid.; see also
Homan v. Gomez (1995) 37 Cal.App.4th 597, 600 [rule intended to prevent
unrelated provisions from sliding through “unnoticed and unchallenged”]; Planned
Parenthood Affiliates v. Swoap (1985) 173 Cal.App.3d 1187, 1196 [rule intended
to “ ‘prevent legislators and the public from being entrapped by misleading titles
to bills whereby legislation relating to one subject might be obtained under the
title of another’ ”].)
However, the single-subject rule “is to be liberally construed to uphold
proper legislation and not used to invalidate legitimate legislation.” (San Joaquin
Helicopters v. Department of Forestry (2003) 110 Cal.App.4th 1549, 1556;
accord, Harbor v. Deukmejian, supra, 43 Cal.3d at pp. 1097-1098; Metropolitan
Water Dist. v. Marquardt (1963) 59 Cal.2d 159, 172-173; Evans v. Superior Court
(1932) 215 Cal. 58, 62.) The Legislature may combine in a single act numerous
provisions “ ‘governing projects so related and interdependent as to constitute a
single scheme,’ ” and provisions auxiliary to the scheme’s execution may be
adopted as part of that single package. (Harbor, at p. 1097, quoting Evans, at
p. 62.) The act’s title “need not contain either an index or an abstract of its
13
provisions. The constitutional mandate [citation] is satisfied if the provisions
themselves are cognate and germane to the subject matter designated by the title,
and if the title intelligently refers the reader to the subject to which the act applies,
and suggests the field of legislation which the text includes.” (Powers Farms, Inc.
v. Consolidated Irr. Dist. (1941) 19 Cal.2d 123, 130; see also City of Whittier v.
Dixon (1944) 24 Cal.2d 664, 666 [to satisfy the Constitution, title need only
“contain[] a reasonably intelligible reference to the subject to which the legislation
is addressed”]; Lyons v. Municipal Court (1977) 75 Cal.App.3d 829, 841.)
Here, the 1978 legislation and its title satisfy the California Constitution.
The legislation’s provisions pertain to a single subject, the comprehensive
regulation of persons and entities that provide talent agency services. The title,
quoted in full in the margin, identifies that subject and specifically references the
existing comprehensive regulations that are to be modified.7 The legislation
defines talent agencies as those that engage in particular conduct; thus, to the
extent personal managers engage in that conduct, they fit within the legislation’s
title and subject matter and may be regulated by its provisions.
Second, Marathon correctly notes that in 1978, after much deliberation, the
Legislature decided not to add separate licensing and regulation of personal
7
The title of the legislation is: “An act to amend Section 9914 of, to repeal
Section 9902.8 of, and to repeal Chapter 21.5 (commencing with Section 9999) of
Division 3 of, the Business and Professions Code, and to amend the heading of
Chapter 4 (commencing with Section 1700) of Part 6 of Division 2 of, to amend
Sections 1700.2, 1700.3, 1700.4, 1700.5, 1700.6, 1700.7, 1700.9, 1700.11,
1700.12, 1700.13, 1700.15, 1700.16, 1700.17, 1700.19, 1700.20a, 1700.20b,
1700.23, 1700.24, 1700.25, 1700.26, 1700.27, 1700.28, 1700.30, 1700.31,
1700.32, 1700.33, 1700.34, 1700.35, 1700.36, 1700.37, 1700.38, 1700.39,
1700.40, 1700.41, 1700.43, and 1700.45 of, to add Section 1700.47 of, and to
repeal and add Section 1700.10 of, the Labor Code, relating to talent agencies.”
(Stats. 1978, ch. 1382, p. 4575, italics added.)
14
managers to the legislation. (See Assem. Bill No. 2535 (1977-1978 Reg. Sess.) as
amended May 10, 1978, pp. 16-18 [deleting new licensure provisions].) The
consequence of this conscious omission is not, as Marathon contends, that
personal managers are therefore exempt from regulation. Rather, they remain
exempt from regulation insofar as they do those things that personal managers do,
but they are regulated under the Act to the extent they stray into doing the things
that make one a talent agency under the Act.8
III. Sanctions for Solicitation and Procurement Under the Act
A. Marathon’s Procurement
We note we are not called on to decide, and do not decide, what precisely
constitutes “procurement” under the Act. The Act contains no definition, and the
Labor Commissioner has struggled over time to better delineate which actions
involve mere general assistance to an artist’s career and which stray across the line
to illicit procurement. Here, however, the Labor Commissioner concluded
Marathon had engaged in various instances of procurement, the trial court
concluded there was no material dispute that Marathon had done so, and Marathon
has not further challenged that conclusion. We thus take it as a given that
Marathon has engaged in one or more acts of procurement and that (as the parties
also agree) Marathon has no talent agency license to do so.
8
The Entertainment Commission articulated precisely this rationale in
concluding there was no need to separately license personal managers: “It is not a
person who is being licensed [under] the [Act;] rather, it is the activity of
procuring employment. Whoever performs that activity is legally defined as a
talent agent and [must be] licensed, as such. Therefore, the licensing of a personal
manager — or anyone else who undertakes to procure employment for an artist —
with the [Act] already in place would be a needless duplication of licensure
activity.” (Entertainment Com. Rep., supra, at pp. 20-21.)
15
We also take as a given, at least at this stage, that Marathon’s unlicensed
procurement did not include the procurement specifically of Blasi’s Strong
Medicine role. Blasi takes issue with this point, correctly pointing out that the
Labor Commissioner found to the contrary, but (1) under the Act’s statutorily
guaranteed trial de novo procedure, the Labor Commissioner’s findings carry no
weight (Buchwald v. Katz, supra, 8 Cal.3d at p. 501), and (2) neither Blasi’s
separate statement of undisputed material facts nor the evidence supporting it
establish that Marathon procured the Strong Medicine role. Thus, for present
purposes we presume Marathon did not procure that role for Blasi.
Finally, although Marathon argued below that it fell within section 1700.44,
subdivision (d)’s “safe harbor” for procurement done in conjunction with a
licensed talent agency, it has not preserved that argument here. Accordingly, we
assume for present purposes that the safe harbor provision does not apply.
B. The Applicability of the Doctrine of Severability to Manager-
talent Contracts
We turn to the key question in Blasi’s appeal: What is the artist’s remedy
for a violation of the Act? In particular, when a manager has engaged in unlawful
procurement, is the manager always barred from any recovery of outstanding fees
from the artist or may the court or Labor Commissioner apply the doctrine of
severability (Civ. Code, § 1599) to allow partial recovery of fees owed for legally
provided services?
Again, we begin with the language of the Act. On this question, it offers no
assistance. The Act is silent — completely silent — on the subject of the proper
remedy for illegal procurement.
On the other hand, the text of Civil Code section 1599 is clear. Adopted in
1872, it codifies the common law doctrine of severability of contracts: “Where a
contract has several distinct objects, of which one at least is lawful, and one at
16
least is unlawful, in whole or in part, the contract is void as to the latter and valid
as to the rest.” (Ibid.) By its terms, it applies even — indeed, only — when the
parties have contracted, in part, for something illegal. Notwithstanding any such
illegality, it preserves and enforces any lawful portion of a parties’ contract that
feasibly may be severed.9
Under ordinary rules of interpretation, we must read Civil Code section
1599 and the Act so as to, to the extent possible, give effect to both. (See
Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals
Bd. (2006) 40 Cal.4th 1, 15, fn. 11; People v. Garcia (1999) 21 Cal.4th 1, 6.) The
two are not in conflict. The Act defines conduct, and hence contractual
arrangements, that are illegal: An unlicensed talent agency may not contract with
talent to provide procurement services. (Lab. Code, §§ 1700.4, subd. (a), 1700.5.)
The Act provides no remedy for its violation, but neither does it repudiate the
generally applicable and long-standing rule of severability. Hence, that rule
applies absent other persuasive evidence that the Legislature intended to reject the
rule in disputes under the Act.
The conclusion that the rule applies is consistent with those of the Labor
Commissioner’s decisions that recognize severability principles may apply to
disputes under the Act. In Almendarez v. Unico Talent Management, Inc.
(Cal.Lab.Com., Aug. 26, 1999) TAC No. 55-97, a radio personality sought a
determination that his personal manager had acted as an unlicensed talent agency.
The Labor Commissioner concluded the manager had engaged in unlawful
procurement — indeed, that procuring employment was the manager’s primary
9
Civil Code section 1598 codifies the companion principle for when
severability is infeasible: “Where a contract has but a single object, and such
object is unlawful, whether in whole or in part . . . , the entire contract is void.”
17
role (id. at pp. 2, 14) — but stopped short of voiding all agreements between the
parties in their entirety. Citing and applying Civil Code section 1599, the Labor
Commissioner concluded that a 1997 agreement between the parties had both a
lawful purpose (repayment of personal expenses the manager had fronted for
Almendarez) and an unlawful purpose (payment of commissions for unlawful
procurement services) and should be partially enforced. (Almendarez, at pp. 18-
21.) On numerous other occasions, the Labor Commissioner has severed contracts
and allowed managers to retain or seek commissions based on severability
principles without expressly citing Civil Code section 1599.10
10
See, e.g., Danielewski v. Agon Investment Co. (Cal.Lab.Com., Oct. 28,
2005) TAC No. 41-03, pages 24-27 (partially enforcing agreement to the extent it
involved loan repayment and invalidating it to the extent it involved payment of
commissions for unlawful services); Gittelman v. Karolat, supra, TAC No. 24-02
pages 14-16 (where manager engaged in unlawful procurement before 1997 but
not thereafter, holding agreement unenforceable through 1997, but allowing
manager to seek commissions earned thereafter); Cuomo v. Atlas/Third Rail
Management, Inc. (Cal.Lab.Com., Jan. 3, 2003) TAC No. 21-01, pages 13-14
(voiding contract only for the period of time after manager commenced acting as
an unlicensed talent agency and denying disgorgement of commissions for earlier
lawful services); Anderson v. D’Avola (Cal.Lab.Com., Feb. 24, 1995) TAC No.
63-93, pages 11-12 (where manager acted as an unlicensed talent agency in
procuring role, denying right to recover commissions for that role, but preserving
right to recover commissions for personal manager services in connection with
later role lawfully procured by Anderson’s licensed talent agency); Bank of
America Nat. Trust & Sav. Assn. v. Fleming (Cal.Lab.Com., Jan. 14, 1982) No.
1098 ASC MP-432, page 16 (ordering return of 20 percent of compensation based
on a determination respondent spent 20 percent of time acting as an unlicensed
talent agency). More recent Labor Commissioner decisions appear to take a more
stringent view toward the availability of severance. We address these decisions
post at page 24.
18
Until two years ago, Court of Appeal decisions under the Act had neither
accepted nor repudiated the general applicability of the severability doctrine.11 In
2005, in Yoo v. Robi, supra, 126 Cal.App.4th 1089, however, the Court of Appeal
considered whether to apply Civil Code section 1599 to allow a personal manager
to seek commissions for lawfully provided services. It noted, correctly, that
severance is not mandatory and its application in an individual case must be
informed by equitable considerations. (Yoo, at p. 1105.) Civil Code section 1599
grants courts the power, not the duty, to sever contracts in order to avoid an
inequitable windfall or preserve a contractual relationship where doing so would
not condone illegality. (Armendariz v. Foundation Health Psychcare Services,
Inc. (2000) 24 Cal.4th 83, 123-124.) The Yoo Court of Appeal concluded the
windfall for the artist, Robi, was not so great as to warrant severance.
In Chiba v. Greenwald (2007) 156 Cal.App.4th 71, the Court of Appeal
also considered whether severance was available for an unlicensed manager/agent
who in that case alleged she had had a Marvin agreement12 with her deceased
musician client/partner. Acknowledging she had acted without a license, the
manager relinquished any claim to commissions, and the Court of Appeal thus was
not presented with the question whether severance might apply to any
management services that required no license. In light of the facts as pleaded, the
Court of Appeal concluded equity did not require severance of any lawful portions
11
The same is true of our own decisions. In Styne v. Stevens, supra, 26
Cal.4th at page 51, we correctly noted in dicta that “an unlicensed person’s
contract with an artist to provide the services of a talent agency is illegal and
void.” We did not address whether severance could ever apply to contracts with
artists to provide personal management services.
12
Marvin v. Marvin (1976) 18 Cal.3d 660.
19
of the Marvin agreement from the unlawful agreement to provide unlicensed talent
agency services. (Chiba, at pp. 81-82.)
Neither Chiba nor Yoo v. Robi, supra, 126 Cal.App.4th 1089, stands for the
proposition that severance is never available under the Act. In contrast, the Court
of Appeal here expressly concluded, as we do, that it is available.
More generally, the conclusion that severance is available is consistent with
a wide range of cases that have applied the doctrine to partially enforce contracts
involving unlicensed services. Thus, for example, in Birbrower, Montalbano,
Condon & Frank v. Superior Court (1998) 17 Cal.4th 119 (Birbrower), a law firm
licensed in New York, but not California, provided legal services in both states.
The trial court and Court of Appeal invalidated the entire attorney fee agreement,
but we reversed in part, explaining that under the doctrine of severability the firm
might be able to recover the fees it had lawfully earned by providing services in
New York, notwithstanding its unlicensed provision of services in California. (Id.
at pp. 138-139.)13 Likewise, in Lindenstadt v. Staff Builders, Inc. (1997) 55
Cal.App.4th 882, an individual assisted a company in finding home health care
businesses to acquire. The individual may have acted only as a finder with regard
13
Blasi distinguishes Birbrower on the ground that there the basis for
differentiating services for which recovery could be had from those for which it
could not was jurisdictional. This is a distinction without a difference. We
recognized in Birbrower a point equally applicable here: In the absence of an
express contrary legislative determination, the equitable principles of severability
may be applied to contracts where some portion of the services provided was
unlicensed and hence unlawful. (Birbrower, supra, 17 Cal.4th at pp. 138-139; cf.
Lewis & Queen v. N. M. Ball Sons (1957) 48 Cal.2d 141, 151 [Bus. & Prof. Code,
§ 7031 “represents a legislative determination that the importance of deterring
unlicensed persons from engaging in the contracting business outweighs any
harshness between the parties” and forecloses severance of those contracts to
which it applies].)
20
to some businesses, but may have crossed the line into providing broker services
without a real estate broker license in other instances. The Court of Appeal
explained that the provision of unlicensed services did not bar all relief; on
remand, the unlicensed individual could still recover for those services that did not
require a broker’s license. (Id. at p. 894; see also Levinson v. Boas (1907) 150
Cal. 185, 194 [severance doctrine applies to contract with unlicensed pawnbroker];
Broffman v. Newman (1989) 213 Cal.App.3d 252, 261-262 [unlicensed real estate
broker may defend entitlement to compensation for services for which no license
is required]; Southfield v. Barrett (1970) 13 Cal.App.3d 290, 294 [under equitable
principles, unlicensed commission merchant entitled to partial recovery under
contract].)
Blasi contends that even if severability may generally apply to disputes
under the Act, we should announce a rule categorically precluding its use to
recover for artist advice and counseling services. She relies on three sources in
support of this rule: the legislative history, case law interpreting the Act, and
decisions of the Labor Commissioner. None persuades us that the Legislature
intended to foreclose the application of severability, as codified in Civil Code
sections 1598 and 1599, to manager-talent contracts that involve illegal
procurement, either generally or with regard to recovery specifically for personal
manager services.
For legislative history, Blasi relies on a portion of the Entertainment
Commission’s 1985 report to the Legislature. Addressing whether criminal
sanctions for violations of the Act, temporarily suspended in 1982, should be
reinstated, the Entertainment Commission said: “The majority of the Commission
believes that existing civil remedies, which are available by legal action in the
civil courts, to anyone who has been injured by breach of the Act, are sufficient to
serve the purposes of deterring violations of the Act and punishing breaches.
21
These remedies include actions for breach of contract, fraud and
misrepresentation, breach of fiduciary duty, interference with business
opportunity, defamation, infliction of emotional distress, and the like. Perhaps the
most effective weapon for assuring compliance with the Act is the power of the
Labor Commissioner, at a hearing on a Petition to Determine Controversy, to find
that a personal manager or anyone has acted as an unlicensed talent agent and,
having so found, declare any contract entered into between the parties void from
the inception and order the restitution to the artist, for the period of the statute of
limitations, of all fees paid by the artist and the forfeiture of all expenses advanced
to the artist. If no fees have been paid, the Labor Commissioner is empowered to
declare that no fees are due and owing, regardless of the services which the
unlicensed talent agent may have performed on behalf of the artist. [¶] These civil
and administrative remedies for violation of the Act continue to be available and
should serve adequately to assure compliance with the Act.” (Entertainment Com.
Rep., supra, at pp. 17-18.) According to Blasi, this passage demonstrates the
Entertainment Commission endorsed voiding of contracts in all instances, and the
Legislature necessarily embraced this view because it adopted all of the
commission’s proposals when it amended the Act in 1986.
We are not persuaded. The passage acknowledges what all parties
recognize — that the Labor Commissioner has the “power” to void contracts, that
she is “empowered” to deny all recovery for services where the Act has been
violated, and that these remedies are “available.” But the power to so rule does
not suggest a duty to do so in all instances. The Labor Commissioner is
empowered to void contracts in their entirety, but nothing in the Entertainment
Commission’s description of the available remedies suggests she is obligated to do
so, or that the Labor Commissioner’s power is untempered by the ability to apply
equitable doctrines such as severance to achieve a more measured and appropriate
22
remedy where the facts so warrant. Thus, we need not consider at length Blasi’s
further contention that these two paragraphs in the Entertainment Commission
Report accurately reflect the views of the Legislature as a whole. Even if so, they
do not connote an intent that managers in proceedings under the Act be deprived
of the opportunity even to raise severability.
Second, Blasi relies on those Court of Appeal decisions that have voided
manager-talent contracts in their entirety. (E.g., Chiba v. Greenwald, supra, 156
Cal.App.4th 71; Yoo v. Robi, supra, 126 Cal.App.4th 1089; Park v. Deftones,
supra, 71 Cal.App.4th 1465; Waisbren v. Peppercorn Productions, Inc., supra, 41
Cal.App.4th 246.) With the exception of Chiba and Yoo, discussed above,
however, the decisions do not touch on when or whether the doctrine of
severability should apply under the Act; as such, they offer no persuasive
arguments in favor of reading the Act as precluding application of Civil Code
section 1599.14
Finally, Blasi relies on a long line of Labor Commissioner decisions that
have denied personal managers any right to recover commissions where they
engaged in unlicensed solicitation or procurement. (See, e.g., Cher v. Sammeth
(Cal.Lab.Com., July 17, 2000) TAC No. 17-99, pp. 12-13; Sevano v. Artistic
Productions, Inc. (Cal.Lab.Com., Mar. 20, 1997) TAC No. 8-93, pp. 23-25.) But
the fact this remedy is often, or even almost always, appropriate, does not support
the position that it is always proper. The Labor Commissioner decisions cited
above (see ante, at pp. 17-18) suggest the Labor Commissioner historically has
14
For this same reason, we see no basis for concluding the Legislature has
acquiesced in an interpretation of the Act under which severability is precluded.
Until 2005, the issue had never been discussed in the Courts of Appeal.
23
recognized she has the authority to allow partial recovery in appropriate
circumstances.
We recognize, however, that in more recent decisions, the Labor
Commissioner has expressly adopted the position Blasi advocates: severance is
never available to permit partial recovery of commissions for managerial services
that required no talent agency license. (Smith v. Harris (Cal.Lab.Com., Aug. 27,
2007) TAC No. 53-05, pp. 16-17; Cham v. Spencer/Cowings Entertainment, LLC
(Cal.Lab.Com., July 30, 2007) TAC No. 19-05, pp. 17-18.) The weight accorded
agency adjudicatory rulings such as these varies according to the validity of their
reasoning and their overall persuasive force. (Yamaha Corp. of America v. State
Bd. of Equalization, supra, 19 Cal.4th at pp. 12-15.) Here, the Labor
Commissioner’s views rest in part on a reading of the legislative history as
suggesting such a rule, in part on a reading of past Court of Appeal decisions as
announcing such a rule, and perhaps in part on a policy judgment that voiding
contracts in their entirety is necessary to enforce the Act effectively. With due
respect, the Labor Commissioner’s assessment of the legislative history and case
law is mistaken; as we have explained, neither requires the rule she proposes. And
any view that it would be better policy if the Act stripped the Labor Commissioner
(and the superior courts in subsequent trials de novo) of the power to apply
equitable doctrines such as severance would be squarely at odds with the Act’s
text, which contains no such limitation. Neither we nor the Labor Commissioner
are authorized to engraft onto the Act such a limitation neither express nor implicit
in its terms. We are thus unpersuaded and decline to follow the Labor
Commissioner’s interpretation.
In sum, the Legislature has not seen fit to specify the remedy for violations
of the Act. Ordinary rules of interpretation suggest Civil Code section 1599
applies fully to disputes under the Act; nothing in the Act’s text, its history, or the
24
decisions interpreting it justifies the opposite conclusion. We conclude the full
voiding of the parties’ contract is available, but not mandatory; likewise,
severance is available, but not mandatory.
C. Application of the Severability Doctrine
Finally, we turn to application of the severability doctrine to the facts of
this case, insofar as those facts are established by the summary judgment record.
Given the procedural posture, our inquiry is narrow: On this record, has Blasi
established as a matter of law that there is no basis for severance?
In deciding whether severance is available, we have explained “[t]he
overarching inquiry is whether ‘ “the interests of justice . . . would be furthered” ’
by severance.” (Armendariz v. Foundation Health Psychcare Services, Inc.,
supra, 24 Cal.4th at p. 124.) “Courts are to look to the various purposes of the
contract. If the central purpose of the contract is tainted with illegality, then the
contract as a whole cannot be enforced. If the illegality is collateral to the main
purpose of the contract, and the illegal provision can be extirpated from the
contract by means of severance or restriction, then such severance and restriction
are appropriate.” (Ibid.; accord, Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th
1064, 1074.)
Blasi does not contend that particular evidence in the record unique to this
contract establishes severance cannot apply. Instead, she offers two arguments
applicable to this contract and to manager-talent contracts in general.
First, Blasi points to the nature of the compensation. In the Marathon-Blasi
contract, as with most such contracts, there is no match between services and
compensation. That is, a personal manager provides an undifferentiated range of
services; in exchange, he receives an undifferentiated right to a certain percentage
of the client’s income stream.
25
This compensation scheme is essentially analogous to a contingency fee
arrangement, in which an attorney provides an undifferentiated set of services and
is compensated not for each service but as a percentage of the ultimate recovery
her efforts yield for her client. In Birbrower, we dealt with both fixed fee and
contingency fee arrangements, and nothing in the nature of the latter stood as an
obstacle to application of severability. We directed the trial court to determine on
remand, if it determined a partially valid agreement existed, what value should be
attributed to legally provided services and what to illegally provided services.
(Birbrower, supra, 17 Cal.4th at pp. 139-140.) While an undifferentiated
compensation scheme may in some instances preclude severance (see Civ. Code,
§ 1608; Selten v. Hyon (2007) 152 Cal.App.4th 463, 471), Birbrower demonstrates
that it does not represent a categorical obstacle to application of the doctrine.15
Accordingly, we may not affirm summary judgment on this basis.
Second, Blasi argues that once a personal manager solicits or procures
employment, all his services — advice, counseling, and the like — become those
of an unlicensed talent agency and are thus uncompensable. We are not
persuaded. In this regard, the conduct-driven definitions of the Act cut both ways.
A personal manager who spends 99 percent of his time engaged in counseling a
client and organizing the client’s affairs is not insulated from the Act’s strictures if
he spends 1 percent of his time procuring or soliciting; conversely, however, the
15
Other courts have likewise recognized that severability may apply, so long
as the service provider contributes lawful consideration wholly independent of the
illegal services, without regard to whether payment was allocated in advance
between the lawful and unlawful services. (E.g., Whorton v. Dillingham (1988)
202 Cal.App.3d 447, 452-454 [applying severance where the plaintiff alleged a
Marvin agreement based on both sexual services and chauffeur, bodyguard,
secretarial, and business services].)
26
1 percent of the time he spends soliciting and procuring does not thereby render
illegal the 99 percent of the time spent in conduct that requires no license and that
may involve a level of personal service and attention far beyond what a talent
agency might have time to provide. Courts are empowered under the severability
doctrine to consider the central purposes of a contract; if they determine in a given
instance that the parties intended for the representative to function as an
unlicensed talent agency or that the representative engaged in substantial
procurement activities that are inseparable from managerial services, they may
void the entire contract. For the personal manager who truly acts as a personal
manager, however, an isolated instance of procurement does not automatically bar
recovery for services that could lawfully be provided without a license. (See
Lindenstadt v. Staff Builders, Inc., supra, 55 Cal.App.4th at p. 894.)
Inevitably, no verbal formulation can precisely capture the full contours of
the range of cases in which severability properly should be applied, or rejected.
The doctrine is equitable and fact specific, and its application is appropriately
directed to the sound discretion of the Labor Commissioner and trial courts in the
first instance. As the Legislature has not seen fit to preclude categorically this
case-by-case consideration of the doctrine in disputes under the Act, we may not
do so either.
In closing, we note one final point apparent from the briefing and oral
argument. Letters and briefs submitted by personal managers indicate a uniform
dissatisfaction with the Act’s application. At oral argument, counsel for Blasi
likewise agreed that the Legislature might profitably consider revisiting the Act.
The Legislature has in the past expressed dissatisfaction with the Act’s
enforcement scheme. (See Sen. Rules Com., Off. of Sen. Floor Analyses, 3d
reading analysis of Sen. Bill No. 1359 (1989-1990 Reg. Sess.) as amended May 1,
1989, p. 2 [decrying absence of effective regulatory and enforcement mechanisms
27
in the wake of the Entertainment Commission’s inability to devise an “equitable
civil or criminal penalty system”].) Adopted with the best of intentions, the Act
and guild regulations aimed at protecting artists evidently have resulted in a
limited pool of licensed talent agencies and, in combination with high demand for
talent agency services, created the right conditions for a black market for
unlicensed talent agency services. (See Assem. Labor and Employment Com.,
Republican Analysis of Sen. Bill No. 1359 (1989-1990 Reg. Sess.) as amended
May 1, 1989 [Labor Commissioner believes unlicensed talent agencies outstrip
licensed talent agencies two to one].) In the event of any abuses by unlicensed
talent agencies, the principal recourse for talent is to raise unlawful procurement
as a defense against collection of commissions, but this is a blunt and unwieldy
instrument. It is of little use to unestablished artists, who it appears may
legitimately fear blacklisting (Talent Agencies Act, supra, 28 Pepperdine L.Rev. at
p. 402; Contested Ascendancy, supra, 20 Loyola L.A. Ent. L.J. at p. 517), and may
well punish most severely those managers who work hardest and advocate most
successfully for their clients, allowing the clients to establish themselves, make
themselves marketable to licensed talent agencies, and be in a position to turn and
renege on commissions (e.g., Kilcher v. Vainshtein, supra, TAC No. 02-99;
Contested Ascendancy, at p. 517).
We, of course, have no authority to rewrite the regulatory scheme. In the
end, whether the present state of affairs is satisfactory is for the Legislature to
decide, and we leave that question to the Legislature’s considered judgment.
28
DISPOSITION
For the foregoing reasons, we affirm the Court of Appeal’s judgment and
remand this case for further proceedings consistent with this opinion.
WERDEGAR, J.
WE CONCUR:
KENNARD, ACTING C. J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
MCADAMS, J.∗
∗
Associate Justice of the Court of Appeal, Sixth Appellate District, assigned
by the Acting Chief Justice pursuant to article VI, section 6 of the California
Constitution.
29
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion Marathon Entertainment, Inc. v. Blasi
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 140 Cal.App.4th 1001
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S145428Date Filed: January 28, 2008
__________________________________________________________________________________
Court:
SuperiorCounty: Los Angeles
Judge: Rolf M. Treu and James C. Chalfant
__________________________________________________________________________________
Attorneys for Appellant:
Fox & Spillane, Gerard P. Fox, Alex M. Weingarten; Law Offices of Donald V. Smiley, Donald V. Smiley;and James Ellis Arden for Plaintiff and Appellant.
Manatt, Phelps & Phillips, Gerald A. Margolis and Benjamin G. Shatz for National Association of Artists’
Managers as Amicus Curiae on behalf of Plaintiff and Appellant.
Law Offices of B. Paul Husband and B. Paul Husband for National Conference of Personal Managers, Inc.,
as Amicus Curiae on behalf of Plaintiff and Appellant.
Greines, Martin, Stein & Richland, Kent L. Richland, Barbara W. Ravitz and Tillman J. Breckenridge for
Talent Managers Association as Amicus Curiae on behalf of Plaintiff and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Alschuler Grossman Stein & Kahan, Dreier Stein & Kahan, Michael J. Plonsker and Daniel A. Fiore forDefendants and Respondents.
Rintala, Smoot, Jaenicke & Rees, William T. Rintala and Michael B. Garfinkel for Association of Talent
Agents as Amicus Curiae on behalf of Defendants and Respondents.
Duncan W. Crabtree-Ireland, Laura Beedy Ritchie, Danielle S. Van Lier; Reich, Adell, Crost & Cvitan,
Hirsch Adell, Laurence S. Zakson; Robert S. Giolito; Rothner, Segall & Greenstone and Anthony R. Segall
for Screen Actors Guild, Inc., American Federation of Television and Radio Artists, AFL-CIO, Directors
Guild of America, Inc., and Writers Guild of America, West, Inc., as Amici Curiae on behalf of Defendants
and Respondents.
__________________________________________________________________________________
Attorneys for Amicus Curiae:
Anne P. Stevason for the State Labor Commissioner as Amicus Curiae.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Donald V. SmileyLaw Offices of Donald V. Smiley
6080 Center Drive, Suite 600
Los Angeles, CA 90045
(310) 242-6754
Michael J. Plonsker
Dreier Stein & Kahan
1620 26th Street, Sixth Floor, North Tower
Santa Monica, CA 90404
(310) 828-9050
2
Petition for review after the Court of Appeal reversed the judgment in a civil action. This case presents the following issues: (1) Are the licensing requirements of the Talent Agencies Act (Lab. Code section 1700 et seq.) applicable to personal business managers as well as talent agents? (2) Is the doctrine of severability of contracts applicable to violations of the Act, or does any act of unlicensed procurement of entertainment employment for an actor by an unlicensed personal business manager in violation of the Act void a contract for personal management services in its entirety?
| Date: | Citation: | Docket Number: | Category: | Status: |
| Mon, 01/28/2008 | 42 Cal. 4th 974, 174 P.3d 741, 70 Cal. Rptr. 3d 727, 42 Cal. 4th 1194a modification | S145428 | Review - Civil Appeal | closed; remittitur issued |
| 1 | Blasi, Rosa (Defendant and Respondent) Represented by Michael J. Plonsker Dreier Stein Kahan Browne Woods George, LLP 1620 26th Street, North Twr, 6th Fl Santa Monica, CA |
| 2 | Marathon Entertainment (Plaintiff and Appellant) Represented by Donald Victor Smiley Law Office of Donald V. Smiley 6080 Center Drive, Suite 600 Los Angeles, CA |
| 3 | Association Of Talent Agents (Amicus curiae) Represented by Michael B. Garfinkel Rintala Smoot et al. 10351 Santa Monica Boulevard, Suite 400 Los Angeles, CA |
| 4 | American Federation Of Television & Radio Artists, Afl-Cio (Amicus curiae) Represented by Duncan Ware Crabtree-Ireland Screen Actors Guild 5757 Wilshire Boulevard Los Angeles, CA |
| 5 | American Federation Of Television & Radio Artists, Afl-Cio (Amicus curiae) Represented by Laurence Scott Zakson Reich Adell Crost & Cvitan 3550 Wilshire Boulevard, Suite 2000 Los Angeles, CA |
| 6 | Screen Actors Guild (Amicus curiae) Represented by Duncan Ware Crabtree-Ireland Screen Actors Guild 5757 Wilshire Boulevard Los Angeles, CA |
| 7 | National Association Of Artists Managers (Amicus curiae) Represented by Gerald A. Margolis Manatt Phelps & Phillips 11355 W. Olympic Boulevard Los Angeles, CA |
| 8 | Department Of Industrial Relations (Pub/Depublication Requestor) Represented by Robert A. Jones Department of Industrial Relations P.O. Box 420603 San Francisco, CA |
| 9 | Directors Guild Of America, Inc. (Amicus curiae) Represented by Duncan Ware Crabtree-Ireland Screen Actors Guild 5757 Wilshire Boulevard Los Angeles, CA |
| 10 | Directors Guild Of America, Inc. (Amicus curiae) Represented by Robert Steven Giolito Directors Guild of America, Inc. 7920 W Sunset Boulevard, Floor A Los Angeles, CA |
| 11 | National Conference Of Personal Managers, Inc. (Amicus curiae) Represented by Bertram Paul Husband Attorney at Law 10 Universal City Plaza, Suite 2200 Universal city, CA |
| 12 | National Conference Of Personal Managers, Inc. (Amicus curiae) Represented by Peter O. Israel Greines Martin Stein & Richland, LLP 5700 Wilshire Boulevard, Suite 375 Los Angeles, CA |
| 13 | Talent Managers Association (Amicus curiae) Represented by Barbara W. Ravitz Greines Martin Stein & Richland, LLP 5700 Wilshire Boulevard, Suite 375 Los Angeles, CA |
| 14 | State Labor Commisioner (Amicus curiae) Represented by Anne Paula Stevason DIR/Division of Labor Standards Enforcement 320 W. Fourth Street, Suite 430 Los Angeles, CA |
| 15 | 609 Maple Street Productions (Defendant and Respondent) Represented by Michael J. Plonsker Dreier Stein Kahan Browne Woods George, LLP 1620 26th Street, North Twr, 6th Fl Santa Monica, CA |
| 16 | Writers Guild Of America, West, Inc. (Amicus curiae) Represented by Duncan Ware Crabtree-Ireland Screen Actors Guild 5757 Wilshire Boulevard Los Angeles, CA |
| Disposition | |
| Jan 28 2008 | Opinion: Affirmed |
| Dockets | |
| Jul 25 2006 | Petition for review filed Marathon Entertainment, appellant Donald Smiley, retained |
| Jul 31 2006 | 2nd petition for review filed respondents Rosa Blasi & 609 Maple Street Productions, Inc. |
| Jul 31 2006 | Record requested |
| Jul 31 2006 | Received Court of Appeal record |
| Aug 14 2006 | Answer to petition for review filed Respondents Rosa Blasi and 609 Maple Street Productions, Inc. |
| Aug 14 2006 | Request for depublication (petition for review pending) The Association of Talent Agents, non party by Michael B. Garfinkel, counsel |
| Aug 17 2006 | Note: received proof of service for depublication from Michael B. Garfinkel for The Association of Talent Agents |
| Aug 18 2006 | Request for depublication filed (another request pending) American Federation of Television and Radio Artists, AFL-CIO [non-party] Attorney Laurence S. Zakson |
| Aug 21 2006 | Answer to petition for review filed to Petition of Respondents Appellant Marathon Entertainment, Inc. Attorney Donald V. Smiley |
| Aug 21 2006 | Reply to answer to petition filed to Answer of Respondents Appellant Marathon Entertainment, Inc. Attorney Donald V. Smiley |
| Aug 21 2006 | Opposition filed to depub request Rick Siegel, Pres. of Marathon Entertainment, Inc. |
| Aug 22 2006 | Request for depublication filed (another request pending) State of California -Department of Industrial Relations, non party by Robert A. Jones, counsel |
| Aug 22 2006 | Request for depublication filed (another request pending) Directors Guild of America, Inc., non-party by Robert S. Giolito, counsel |
| Aug 22 2006 | Request for depublication filed (another request pending) Screen Actors Guild [non-party] General Counsel Duncan Crabtree-Ireland |
| Aug 23 2006 | Opposition filed to depublication request of Assn of Talent Agents and American Assn of Radio and Television Artists\\ Vanguard Management Group, etal [non-parties] |
| Aug 24 2006 | Opposition filed to depublication request of Assn of Talent Agents and American Assn of Radio and Television Artists\\ National Association of Artist's Managers and talent Manager's Association [non-parties] |
| Aug 29 2006 | Opposition filed By: Rick Siegel, Pres. of Marathon Entertainment {appellant} to depublication request of Acting State Labor Commissioner and Chief Counsel for Dept of Ind. Relations Robert Jones |
| Aug 31 2006 | Reply to answer to petition filed Respondent, Rosa Blasi and 609 MKaple Street Productions, Inc. |
| Aug 31 2006 | Received: from appellant Marathon Entertainment Attorney Donald Smiley Proof of Service re: depublication opposition. submitted earlier. |
| Sep 1 2006 | Opposition filed by The National Conference of Personal Managers to Depublication requests filed by California State Labor Commissioner, The Screen Actors Guild, and The Directors Guild of America, INC., by Peter O. Israel, counsel |
| Sep 1 2006 | Opposition filed The National Association of Artist's Managers and the Talent Manage's Association, [non parties] by Gerald A. Margolis, retained. |
| Sep 12 2006 | Note: |
| Sep 12 2006 | Received Court of Appeal record |
| Sep 20 2006 | Petition for review granted (civil case) petitions Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ. |
| Sep 20 2006 | Letter sent to: counsels, re: certification of interested entities or persons |
| Oct 5 2006 | Certification of interested entities or persons filed Respondent Rosa Blasi Attorney Michael J. Plonsker |
| Oct 13 2006 | Certification of interested entities or persons filed Appellant Marathon Entertainment, Inc. Attorney Donald V. Smiley |
| Oct 19 2006 | Request for extension of time filed opening brief/merits to 10-30-06 Respondents Rosa Blasi, etal |
| Oct 24 2006 | Extension of time granted to October 30, 2006 to file respondents opening brief on the merits. |
| Oct 27 2006 | Opening brief on the merits filed Marathon Entertainment, Inc. Donald V. Smiley, counsel |
| Oct 30 2006 | Opening brief on the merits filed Respondents Rosa Blasi and 609 Maple Street Productions, Inc. Attorney Michael J. Plonsker |
| Nov 29 2006 | Answer brief on the merits filed Appellant Marathon Entertainment, Inc. Attorney Donald V. Smiley |
| Nov 29 2006 | Answer brief on the merits filed Respondents Rosa Blasi, etal Attorney Michael J. Plonsker |
| Dec 13 2006 | Request for extension of time filed to file reply brief/merits to 12-29-06 Respondents Rose Blasi, etal |
| Dec 19 2006 | Extension of time granted to December 29, 2006 to file respondent's reply brief on the merits. |
| Dec 27 2006 | Reply brief filed (case fully briefed) Appellant Marathon Entertainment, Inc. |
| Dec 29 2006 | Reply brief filed (case fully briefed) Respondents Rosa Blasi and 609 Maple Street Productions, Inc., |
| Jan 25 2007 | Received application to file Amicus Curiae Brief Association of Talent Agents [in support of respondents] Attorney Michael B. Garfinkel |
| Jan 26 2007 | Received application to file Amicus Curiae Brief Screen Actors Guild, Inc., American Federation to TV and Radio Artists, Directors Guild of America and Writers Guild of America Attorney Duncan W. Crabtree-Ireland |
| Jan 26 2007 | Received application to file Amicus Curiae Brief State Labor Commissioner Attorney Anne P. Stevason, Div. of Labor Stds Enforcement |
| Jan 26 2007 | Received application to file Amicus Curiae Brief Talent Managers Association Attorney Barbara W. Ravitz |
| Jan 26 2007 | Received: Request for Judicial Notice Talent Managers Association Attorney Barbara W. Ravitz |
| Jan 29 2007 | Received application to file Amicus Curiae Brief National Conference of Personal Managers, Inc. [in support of aplt] Attorney B. Paul Husband |
| Jan 30 2007 | Received application to file Amicus Curiae Brief of National Association of Artist's Manager in support of appellant Marathon Entertainment, Inc. by Gerald A. Margolis, counsel |
| Feb 2 2007 | Permission to file amicus curiae brief granted The Association of Talent Agents, answer due within twenty days. |
| Feb 2 2007 | Amicus curiae brief filed The Association of Talent Agents in support of respondent. by Michael B. Garfinkel, counsel |
| Feb 2 2007 | Permission to file amicus curiae brief granted Screen Actors Guild, Inc., American Federation of Television and Radio Artists, AFL-CIO, Directors Guild of America, Inc., and Writers Guild of America, West, Inc. Answer due within twenty days. |
| Feb 2 2007 | Amicus curiae brief filed Screen Actors Guild, Inc., American Federation of Television and Radio Artists, AFL-CIO, Directors Guild of America, Inc., and Writers Guild of America, West, Inc. by Duncan W. Crabtree-Ireland, counsel |
| Feb 2 2007 | Permission to file amicus curiae brief granted The State Labor Commisioner. Answer due within twenty days. |
| Feb 2 2007 | Amicus curiae brief filed The State Labor Comissioner by Anne P. Stevason, counsel |
| Feb 2 2007 | Permission to file amicus curiae brief granted Talent Managers, answer due within twenty days. |
| Feb 2 2007 | Amicus curiae brief filed Talent Managers in support of respondent. by Barbara Ravitz, counsel |
| Feb 2 2007 | Received application to file Amicus Curiae Brief National Conference of Personal Managers, Inc., answer due within twenty days. |
| Feb 2 2007 | Amicus curiae brief filed National Conference of Personal Managers, Inc. by B. Paul Husbund, counsel |
| Feb 2 2007 | Permission to file amicus curiae brief granted National Association of Artist's Managers, answer due within twenty days. |
| Feb 2 2007 | Amicus curiae brief filed National Association of Artist's Managers in support of appellant. by Gerald A. Margolis, counsel |
| Feb 2 2007 | Request for judicial notice filed (granted case) Talent Mangers Association by Barbara Ravitz, counsel |
| Feb 14 2007 | Request for extension of time filed to file response to AC briefs Respondents Rosa Blasi, etal |
| Feb 20 2007 | Notice of substitution of counsel Respondents Rosa Blasi, etal Attorney Michael J. Plonsker |
| Feb 20 2007 | Extension of time granted to March 29, 2007 to file the answer to (3) three amicus curiae briefs. No further extensions will be contemplated. |
| Feb 20 2007 | Request for extension of time filed to March 29, 2007 (35) day extension to file appellants answer to (3) three amicus curiae briefs by Donald V. Smiley, counsel |
| Feb 23 2007 | Extension of time granted to March 29, 2007 to file appellants answers to amicus curiae briefs. |
| Mar 29 2007 | Application to file over-length brief filed for combined Answer to AC Briefs Respondents Rosa Blasi, etal Attorney Daniel A. Fiore |
| Mar 29 2007 | Received: oversize Answer to AC Briefs respondents Rosa Blasi, etal Attorney Daniel A. Fiore |
| Mar 29 2007 | Request for judicial notice filed (granted case) Respondents Rosa Blasi, etal |
| Mar 29 2007 | Response to amicus curiae brief filed Marathon Entertainment, Inc., appellant Donald V. Smiley, counsel |
| Apr 6 2007 | Response to amicus curiae brief filed Rosa Blasi, et al., respondents by Daniel A. Fiore, counsel |
| Sep 27 2007 | Note: George, C.J. recused. 10/4/07 Hon. Richard J. McAdams assigned. |
| Oct 2 2007 | Case ordered on calendar to be argued on Tuesday, November 6, 2007, at 9:00 a.m., in Sacramento. |
| Oct 4 2007 | Order filed For purposes of oral argument, respondents will argue first and may reserve time for rebuttal; appellant will argue second. |
| Oct 9 2007 | Received: Letter from Daniel A. Fiore, counsel for respondents Blasi, reserving rebuttal time at oral argument. |
| Oct 15 2007 | Order filed The requests for judicial notice filed by respondents Rosa Blasi et al., on March 29, 2007, and amicus Talent Managers Association on February 2, 2007. are hereby granted. |
| Oct 22 2007 | Request for Extended Media coverage Filed The California Channel |
| Oct 24 2007 | Request for Extended Media coverage Granted The request for extended media coverage, filed by The California Channel on October 22, 2007, is granted, subject to the conditions set forth in rule 1.150, California Rules of Court. |
| Oct 26 2007 | Received: from Rosa Blasi and 609 Maple Street Productions, Inc., respondents supplemental brief with add'l. appendix under separate cover |
| Nov 6 2007 | Stipulation filed Counsel for the parties in the above-entitled action, having been informed by the Clerk of the Court that Justice Corrigan will not be present at oral argument because of illness, but will review the tape recording of the oral argument, hereby stipulate that they have no objection to Justice Corrigan's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument. |
| Nov 6 2007 | Cause argued and submitted |
| Nov 14 2007 | Received: Supplemental Brief on oral argument issues Appellant Marathon Entertainment, Inc. Attorney James Ellis Arden |
| Nov 14 2007 | Application filed to: Application to file Supplemental Brief Appellant Marathon Entertainment, Inc. Attorney James Ellis Arden |
| Nov 14 2007 | Notice of substitution of counsel Appellant Marathon Entertainment Attorney James Ellis Arden in subs for Donald V. Smiley |
| Nov 16 2007 | Opposition filed to application to file Supplemental Brief Respondents Rosa Blasi, etal Attorney Michael J. Plonsker |
| Nov 26 2007 | Filed: Supplement Brief on issues raised in oral argument Martahnon Entertainment, Inc., appellent by James Ellis Arden, counsel with permission. |
| Nov 29 2007 | Received: Post-Argument Supplemental Brief Respondents Rosa Blasi & 609 Maple Street Productions, Inc. Attorneys Michael J. Plonsker and Daniel A. Fiore |
| Nov 29 2007 | Application filed to: file Post-Argument Supplemental Brief |
| Dec 5 2007 | Filed: Post-Agrument Supplemental Brief - with permission Rosa Blasi & 609 Maple Street Productions, Inc., respondents by Michael J. Plonsker and Daniel A. Fiore, counsel |
| Jan 8 2008 | Change of contact information filed for: counsel, Michael J. Plonsker, for Respondents Rosa Blasi, etal Notice of change of firm name and e-mail addresses |
| Jan 15 2008 | Change of contact information filed for: Amicus Curiae - National Conference of Personal Managers by B. Paul Husband, Esq., counsel |
| Jan 25 2008 | Notice of forthcoming opinion posted |
| Jan 28 2008 | Opinion filed: Judgment affirmed in full We affirm the Court of Appeal's judgment and remand this case for further proceedings consistent with this opinion. Opinion by: Werdegar,J. -----joined by Kennard, Acting C.J.,Baxter,Chin,Moreno, Corrigan and McAdams, JJS McAdams is Associate Justice of the the Court of Appeal, Sixth Appelate District |
| Feb 13 2008 | Rehearing petition filed Appellant Marathon Entertainment, Inc. submitted with attachments under separate covers. volume one contains "A" through "O " --and-- volume two with "P" through "Z" . Attorney James Ellis Arden |
| Feb 19 2008 | Time extended to grant or deny review The time for granting or denying rehearing in the above-entitled case is hereby extended to and including April 25, 2008, or the date upon which rehearing is either granted or denied. |
| Mar 12 2008 | Rehearing denied The request for modification of the opinion is denied. George, C.J., was recused and did not participate. Moreno, J., was absent and did not participate. |
| Mar 12 2008 | Opinion modified - no change in judgment |
| Mar 12 2008 | Remittitur issued (civil case) |
| Mar 19 2008 | Received: receipt for remittitur from Court of Appeal, Second Appellate District - Division One. |
| Briefs | |
| Oct 27 2006 | Opening brief on the merits filed |
| Oct 30 2006 | Opening brief on the merits filed |
| Nov 29 2006 | Answer brief on the merits filed |
| Nov 29 2006 | Answer brief on the merits filed |
| Dec 27 2006 | Reply brief filed (case fully briefed) |
| Dec 29 2006 | Reply brief filed (case fully briefed) |
| Feb 2 2007 | Amicus curiae brief filed |
| Feb 2 2007 | Amicus curiae brief filed |
| Feb 2 2007 | Amicus curiae brief filed |
| Feb 2 2007 | Amicus curiae brief filed |
| Feb 2 2007 | Amicus curiae brief filed |
| Feb 2 2007 | Amicus curiae brief filed |
| Mar 29 2007 | Response to amicus curiae brief filed |
| Apr 6 2007 | Response to amicus curiae brief filed |
| Dec 17, 2008 Annotated by admin.ah | Written by: Marin Babb CASE BRIEF
*See The Internet Movie Database at http://www.imdb.com/name/nm0087726/ about Blasi’s background and career. Procedural History
Issues Legal Rules
Analysis and Conclusions
Final Disposition BACKGROUND: PERSONAL MANAGERS AND TALENT AGENTS Articles and Sources LAW STUDENT ANALYSIS |
